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Re Eng Sui Hang

Judgment Cited in Precedent Map Related
Vincent
Judgment Date10 January 1991
CourtHigh Court (Hong Kong)
Judgement NumberHCMP2469/1990
Subject MatterMiscellaneous Proceedings
HCMP002469/1990 RE ENG SUI HANG

HCMP002469/1990

M.P. Nos. 2426, 2469 & 2641 of 1990

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HEADNOTE

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THERE BEING A REASONABLE BASIS FOR CONSIDERING SUCH COURSE NECESSARY, NO VEXATION OR OPPRESSION ARISING, AND THE INTENTION OF THOSE PURSUING SUCH COURSE BEING TO ACT IN CONFORMITY WITH THE LAW AS THE COURT DECLARED IT, THE COURT UPHELD AN ORDER TO PROCEED AND A RESULTING WARRANT OF APPREHENSION WHICH HAD BEEN MADE AND ISSUED RESPECTIVELY DURING THE PENDENCY OF HABEAS CORPUS PROCEEDINGS CHALLENGING A COMMITTAL MADE IN EXTRADITION PROCEEDINGS UNDER AN EARLIER ORDER TO PROCEED, EVEN THOUGH SUCH COURSE WAS CONTINGENT INASMUCH AS THERE WOULD BE NO NEED TO PROCEED FURTHER UNDER THE LATER ORDER OR TO EXECUTE THE WARRANT UNLESS THE FUGITIVE'S APPLICATION FOR HABEAS CORPUS SUCCEEDED.

M.P. No. 2426 of 1990
M.P. No. 2469 of 1990
M.P. No. 2641 of 1990

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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IN THE MATTER OF ENG SUI HANG

and
IN THE MATTER of an application for a Writ of Habeas Corpus ad Subjiciendum

and
IN THE MATTER of two applications by ENG SUI HANG for Judicial Review

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Coram: Mr Justice Bokhary in Court

Dates of hearing: 7, 8, 9 and 10 January1991

Date of delivery of judgment: 10 January 1991

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JUDGMENT

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1. There are three sets of proceedings before me. Habeas corpus is sought in one. Certiorari is sought in the other two, which are proceedings by way of judicial review. In each instance the applicant is one Eng Sui Hang. At present he is being detained at the Lai Chi Kok Reception Centre. He is being detained there pending committal proceedings for his extradition to the United States of America on 25 dangerous drugs counts or, if he succeeds before me, his release.

2. Such committal proceedings would not be the first attempt to commit the applicant for extradition on those counts - 21 of which relate to the Eastern District of New York and 4 of which relate to the Southern District of that city.

3. He was first arrested with a view to such extradition on August 17, 1989. That arrest was effected under a provisional warrant issued two days earlier. The chapter which opened thus - and which includes his committal on December 21, 1989 - closed on June 22, 1990. On that day Jones J. ordered the applicant's release by way of habeas corpus. The basis of Jones J.'s decision was that the whole of the extradition proceedings were null and void by reason of their having been purportedly brought under the Extradition Act 1870 after its repeal on September 28, 1989, by the Extradition Act 1989. No order to proceed had been made prior to such repeal; and Jones J. rejected the United States Government's argument that the extradition proceedings had commenced when, prior to such repeal, information was laid for the provisional warrant or, at the latest, when, still prior to such repeal, the applicant was arrested.

4. On June 22, 1990, the day on which Jones J. gave judgment, the applicant was re-arrested after he had emerged from the holding cells area in this building and as he was seeking to leave the building by the covered driveway which gives on to the public highway.

5. Such re-arrest was effected under a warrant of apprehension which had been issued by a magistrate on May 29, 1990, pursuant to an order to proceed made by the Deputy Governor on the 25th of that month. That order was made - as were each of the other orders to proceed with which this case is concerned - upon a requisition of the United States Government through the diplomatic channel under the relevant treaty.

6. The habeas corpus proceedings in which Jones J. gave judgment on June 22, 1990, were heard from May 29 to 31, 1990, having been launched some 4 months earlier. Therefore, the May order had been made while those habeas corpus proceedings were pending, and the May warrant had been issued while they were being heard.

7. The May order was obtained so that if the applicant were released - as it was felt that he might be - he could be re-arrested at once under a warrant issued pursuant thereto; and the May warrant is the one which was so issued.

8. What was feared - reasonably in my view - was this: If he were released and left at liberty the applicant would lose no time in leaving Hong Kong, and would have done so by the time any warrant of apprehension could be obtained pursuant to an order to proceed sought only after such release.

9. The next thing that happened was this: On July 26, 1990 - and therefore well after Jones J.'s judgment - while the applicant was in custody on remand following his re-arrest on June 22, 1990, under the May warrant, two further orders to proceed were sought and made. They were made by the Governor upon a new requisition made two days earlier. One of the July orders is in respect of the 21 Eastern District counts, while the other one is in respect of the 4 Southern District counts.

10. The July orders were sought not because of any qualms over the timing of the May order, but rather because some doubt was felt in regard to its wording, and also because seperate committal hearings for the Eastern District counts, on the one hand, and the Southern District counts, on the other hand, were intended.

11. On August 3, 1990, two further warrants of apprehension - one in respect of the Eastern District counts and the other in respect of the Southern District counts - were issued pursuant to the July orders.

12. On August 6, 1990, the applicant was arrested at the Lai Chi Kok Reception Centre under the August warrants. On the following day he was brought before a magistrate; and he was then remanded in custody.

13. Following that, the present habeas corpus and judicial review proceedings were launched; and the committal proceedings have remained in abeyance since.

14. In the habeas corpus proceedings before me, the applicant challenges the lawfulness of his detention, making it necessary for those seeking to justify it to demonstrate - to the high degree of probability required where a restraint upon liberty is to be justified - that it is lawful.

15. Shortly stated, the applicant's principal contentions are these: First, all the warrants which have been issued for his apprehension are irrational and purportedly issued in the absence of any power to issue them or by an abuse of the process of the court issuing them. Secondly, all the orders to proceed to which they were issued are irrational and purportedly made in the absence of any power to make them or by a misuse of the power to make them.

16. Those...

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